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BILL NUMBER:S3337A

TITLE OF BILL: An act to amend the penal law and the criminal procedure law, in relation to sentencing and resentencing in domestic violence cases

PURPOSE: To expand upon the existing provisions of alternative sentencing for domestic violence cases; second, to allow judges the opportunity to resentence currently incarcerated persons for offenses in which certain domestic violence criteria was a significant element of the offense.

SUMMARY OF PROVISIONS:;

Section 1 of the bill amends § 60.12 of the penal law and adds new subparagraphs 4 and 5 to specify which offenses may be considered under the alternative indeterminate sentence of imprisonment for domestic violence cases.

Section 2 of the bill amends §70.45 of the penal law to permit determinate sentencing for persons sentenced pursuant to 0.12(5).

Section 3 of the bill adds a new § 440.47 to the criminal procedure law to allow currently incarcerated persons to apply for resentencing pursuant to 560.12 of the penal law.

Section 4 of the bill amends § 450.90 of the criminal procedure law to grant leave for appeal.

Section 6 of the bill provides that these amendments would take effect 120 days after it shall have become law.

JUSTIFICATION:

Domestic violence and women's incarceration are inextricably linked: nine of 10 incarcerated women have experienced severe physical or sexual violence in their lifetimes, eight of 10 experienced serious physical or sexual violence during childhood; 75% suffered severe physical violence by an intimate partner during adulthood; and 37% were raped before their incarceration_ Ninety-three percent of women convicted of killing an intimate partner were abused by an intimate partner in the past.

Over the past 30 years, domestic violence has been increasingly recognized as a national epidemic. Unfortunately, the significant advances made by the anti-violence movement have stopped short of reforming the unjust ways in which the criminal justice system responds to and punishes domestic violence survivors who act to protect themselves from an abuser's violence.

All too often, when a survivor defends herself and her children, our criminal justice system responds with harsh punishment instead of with compassion and assistance. Much of this punishment is a result of our state's current sentencing structure which does not allow judges discretion to fully consider the impact of domestic violence when determining sentence lengths. This leads to long, unfair prison sentences for many survivors.

The Domestic Violence Survivors Justice Act would address this problem for both male and female survivors of domestic violence by: (1) allowing judges to sentence survivors to alternative sentences of imprisonment including determinate sentences and, in some cases, community-based alternative-to-incarceration program and (2) providing survivors currently in prison the opportunity to apply for resentencing, granting much-deserved relief for incarcerated individuals who rose no threat to public safety.

The Act contains protections to ensure appropriate use of this discretion - a judge can only grant an alternative sentence to a defendant if s/he finds that: (1) the defendant was, at the time of the offense, a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the "same family or household" as the defendant as that term is defined in subdivision one of section 530.11 of the criminal procedure law;

(2) the abuse was a "significant contributing factor" to the defendant's participation in the crime; and, (3) a sentence under current law would be "unduly harsh."

The bill requires a judge to apply the same test when determining resentencing eligibility for an incarcerated survivor who submits a resentencing application to the court. In order to be considered for eligibility, an incarcerated survivor is also required to include evidence corroborating the claim she was, at the time of tile offense, a victim of domestic violence.

The Act would address shortcomings in New York's current domestic violence sentencing exception, enacted as part of the state's 1998 Sentencing Reform Act, commonly known as Jenna's Law. This exception allows judges to give survivors indeterminate sentences, At the time, state officials thought this exception would lead to less punitive sentencing for survivors - unfortunately, it did not. In 2007, only one person had been sentenced under this exception. He received 6 to 12 years longer than the minimum term allowed for individuals not sentenced under this provision) and was denied parole twice. In 2009, not a single person was incarcerated under the exception.

The New York State Sentencing Commission, established in 2007, noted that this law should be replaced "with a comparable ameliorative provision that would allow for the imposition of less harsh, determinate sentences in such cases." The Domestic Violence Survivors Justice Act would do just that.

Eligibility for alternative indeterminate sentences of imprisonment, determinate sentences of imprisonment and alternatives to incarceration for women survivors is particularly appropriate as they most often have no prior criminal records, no history of violence and extremely low recidivism rates: of the 36 women convicted of murder and released between 1985 and 2003, not a single one returned to prison for a new crime within a 26-month period of release - a 0% recidivism rate.

Community-based alternative programs are far more effective than prison in allowing survivors to rebuild relationships with their families, recover from abuse, and take responsibility while positively

participating in their communities. Allowing mothers to live in the community while serving sentences also permits them to maintain ties to children and lessen the trauma of separation - thereby increasing the likelihood that children will receive the support they need to become healthy, productive adults. In addition, New York can save substantial costs by sentencing DV survivors to lower sentences and alternative programs. It costs approximately $43,000 per year to incarcerate a person in a New York state prison, while the annual cost per participant of an alternative to incarceration program in New York City is only $11,000. Alternative programs save taxpayers tens of thousands of dollars per person each year while helping to build healthy and safe individuals and communities.

Domestic and international human rights standards uphold the right of women - and all people - to live free from violence. Our government has recognized its responsibility to preserve this right and provide support for DV survivors. This responsibility does not end when a survivor becomes involved in the criminal justice system because of abuse she suffers - in part because the very lack of adequate protection, intervention and support is what often leads to this involvement in the first place. With no compromise to public safety, the DV Survivors Justice Act will help New York address the years of injustice faced by survivors whose lives have been shattered by domestic abuse and decrease the likelihood of survivors being victimized by the very system that should help protect them.

PRIOR LEGISLATIVE HISTORY:

None.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

Given that this legislation may result in: (1) alternative sentences and non-incarcerative sentences for at least some domestic violence survivor-defendants and (2) resentencing and conditional release for at least some currently incarcerated survivors, it is very likely that this bill will save the state funds.

EFFECTIVE DATE:

This legislation would take 120 days after enactment.

Text

STATE OF NEW YORK
________________________________________________________________________
3337--A
2013-2014 Regular Sessions
IN SENATE
February 1, 2013
___________

Introduced by Sens. HASSELL-THOMPSON, ADAMS, ADDABBO, AVELLA, BRESLIN,
CARLUCCI, DILAN, ESPAILLAT, GRISANTI, KENNEDY, KLEIN, KRUEGER, MONT-
GOMERY, PARKER, PERALTA, PERKINS, RIVERA, SAMPSON, SAVINO, SERRANO,
STAVISKY, STEWART-COUSINS -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the penal law and the criminal procedure law, in
relation to sentencing and resentencing in domestic violence cases
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 60.12 of the penal law, as added by chapter 1 of
the laws of 1998, is amended to read as follows:
S 60.12 Authorized disposition; alternative [indeterminate] sentence [of
imprisonment]; domestic violence cases.
1. Notwithstanding any other provision of law, where a court is impos-
ing sentence UPON A PERSON pursuant to section 70.00, 70.02 [upon a
conviction for an offense enumerated in subdivision one of such section]
OR 70.06 OF THIS TITLE, other than FOR an offense defined in [article
one hundred thirty of this chapter] SECTION 125.26, 125.27, SUBDIVISION
FIVE OF SECTION 125.25, OR ARTICLE 490 OF THIS CHAPTER, OR FOR AN
OFFENSE WHICH WOULD REQUIRE SUCH PERSON TO REGISTER AS A SEX OFFENDER
PURSUANT TO ARTICLE 6-C OF THE CORRECTION LAW, AN ATTEMPT OR CONSPIRACY
TO COMMIT ANY SUCH OFFENSE and is authorized or required pursuant to
[such section] SECTIONS 70.00, 70.02 OR 70.06 to impose a [determinate]
sentence of imprisonment [for such offense], the court, upon a determi-
nation following a hearing that (a) AT THE TIME OF THE INSTANT OFFENSE,
the defendant was [the] A victim of DOMESTIC VIOLENCE SUBJECTED TO
SUBSTANTIAL physical, sexual or psychological abuse [by the victim or
intended victim of such offense,] INFLICTED BY A MEMBER OF THE SAME
FAMILY OR HOUSEHOLD AS THE DEFENDANT AS SUCH TERM IS DEFINED IN SUBDIVI-

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06253-02-3

S. 3337--A 2

SION ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW; (b) such abuse
was a SIGNIFICANT CONTRIBUTING factor [in causing the defendant to
commit such offense and] TO THE DEFENDANT'S CRIMINAL BEHAVIOR; (c) [the
victim or intended victim of such offense was a member of the same fami-
ly or household as the defendant as such term is defined in subdivision
one of section 530.11 of the criminal procedure law, may, in lieu of
imposing such determinate sentence of imprisonment, impose an indetermi-
nate sentence of imprisonment in accordance with subdivisions two and
three of this section.] HAVING REGARD TO THE NATURE AND CIRCUMSTANCES OF
THE CRIME AND TO THE HISTORY, CHARACTER AND CONDITION OF THE DEFENDANT,
THAT A SENTENCE OF IMPRISONMENT PURSUANT TO SECTION 70.00, 70.02 OR
70.06 OF THIS TITLE WOULD BE UNDULY HARSH MAY INSTEAD IMPOSE A SENTENCE
IN ACCORDANCE WITH SUBDIVISION TWO, THREE, FOUR, FIVE, SIX OR SEVEN OF
THIS SECTION.
A COURT MAY DETERMINE THAT SUCH ABUSE CONSTITUTES A SIGNIFICANT
CONTRIBUTING FACTOR PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION
REGARDLESS OF WHETHER THE DEFENDANT RAISED A DEFENSE PURSUANT TO ARTICLE
THIRTY-FIVE, ARTICLE FORTY, OR SUBDIVISION ONE OF SECTION 125.25 OF THIS
CHAPTER.
AT THE HEARING TO DETERMINE WHETHER THE DEFENDANT SHOULD BE SENTENCED
PURSUANT TO THIS SECTION, THE COURT SHALL CONSIDER ORAL AND WRITTEN
ARGUMENTS, TAKE TESTIMONY FROM WITNESSES OFFERED BY EITHER PARTY, AND
CONSIDER RELEVANT EVIDENCE TO ASSIST IN MAKING ITS DETERMINATION. RELI-
ABLE HEARSAY SHALL BE ADMISSIBLE AT SUCH HEARINGS.
2. [The maximum term of an indeterminate sentence imposed pursuant to
subdivision one of this section must be fixed by the court as follows:]
WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE PURSUANT
TO SECTION 70.02 OF THIS TITLE, THE COURT MAY IMPOSE A DEFINITE SENTENCE
OF IMPRISONMENT OF ONE YEAR OR LESS, OR PROBATION IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 65.00 OF THIS TITLE, OR MAY FIX A TERM OF IMPRI-
SONMENT AS FOLLOWS:
(a) For a class B felony, the term must be at least [six years] ONE
YEAR and must not exceed [twenty-five] FIVE years;
(b) For a class C felony, the term must be at least [four and one-half
years] ONE YEAR and must not exceed [fifteen] THREE AND ONE-HALF years;
(c) For a class D felony, the term must be at least [three years] ONE
YEAR and must not exceed [seven] TWO years; and
(d) For a class E felony, the term must be [at least three years] ONE
YEAR and must not exceed [four] ONE AND ONE-HALF years.
3. [The minimum period of imprisonment under an indeterminate sentence
imposed pursuant to subdivision one of this section must be fixed by the
court at one-half of the maximum term imposed and must be specified in
the sentence] WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A
SENTENCE FOR A CLASS A FELONY OFFENSE PURSUANT TO SECTION 70.00 OF THIS
TITLE OR TO SUBDIVISION TWO OR THREE OF SECTION 70.71 OF THIS TITLE, THE
COURT MAY FIX A TERM OF IMPRISONMENT OF AT LEAST FIVE YEARS AND NOT TO
EXCEED FIFTEEN YEARS.
4. WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE
PURSUANT TO SUBDIVISION SIX OF SECTION 70.06 OF THIS TITLE, THE COURT
MAY FIX A TERM OF IMPRISONMENT AS FOLLOWS:
(A) FOR A CLASS B FELONY, THE TERM MUST BE AT LEAST THREE YEARS AND
MUST NOT EXCEED EIGHT YEARS;
(B) FOR A CLASS C FELONY, THE TERM MUST BE AT LEAST TWO AND ONE-HALF
YEARS AND MUST NOT EXCEED FIVE YEARS;
(C) FOR A CLASS D FELONY, THE TERM MUST BE AT LEAST TWO YEARS AND MUST
NOT EXCEED THREE YEARS;

S. 3337--A 3

(D) FOR A CLASS E FELONY, THE TERM MUST BE AT LEAST ONE AND ONE-HALF
YEARS AND MUST NOT EXCEED TWO YEARS.
5. WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE FOR
A CLASS B, C, D OR E FELONY OFFENSE PURSUANT TO SECTION 70.00 OF THIS
TITLE, THE COURT MAY IMPOSE A SENTENCE IN ACCORDANCE WITH THE PROVISIONS
OF SUBDIVISION TWO OF SECTION 70.70 OF THIS TITLE.
6. EXCEPT AS PROVIDED IN SUBDIVISION SEVEN OF THIS SECTION, WHERE A
COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE PURSUANT TO
SUBDIVISION THREE OF SECTION 70.06 OF THIS TITLE, THE COURT MAY IMPOSE A
SENTENCE IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION THREE OF
SECTION 70.70 OF THIS TITLE.
7. WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE
PURSUANT TO SUBDIVISION THREE OF SECTION 70.06 OF THIS TITLE, WHERE THE
PRIOR FELONY CONVICTION WAS FOR A FELONY OFFENSE DEFINED IN SECTION
70.02 OF THIS TITLE, THE COURT MAY IMPOSE A SENTENCE IN ACCORDANCE WITH
THE PROVISIONS OF SUBDIVISION FOUR OF SECTION 70.70 OF THIS TITLE.
S 2. Paragraphs (a), (b), (c), (d), (e) and (f) of subdivision 2 of
section 70.45 of the penal law, as amended by chapter 7 of the laws of
2007, are amended to read as follows:
(a) such period shall be one year whenever a determinate sentence of
imprisonment is imposed pursuant to subdivision two of section 70.70 of
this article OR SUBDIVISION FIVE OF SECTION 60.12 OF THIS TITLE upon a
conviction of a class D or class E felony offense;
(b) such period shall be not less than one year nor more than two
years whenever a determinate sentence of imprisonment is imposed pursu-
ant to subdivision two of section 70.70 of this article OR SUBDIVISION
FIVE OF SECTION 60.12 OF THIS TITLE upon a conviction of a class B or
class C felony offense;
(c) such period shall be not less than one year nor more than two
years whenever a determinate sentence of imprisonment is imposed pursu-
ant to subdivision three or four of section 70.70 of this article OR
SUBDIVISION SIX OR SEVEN OF SECTION 60.12 OF THIS TITLE upon conviction
of a class D or class E felony offense;
(d) such period shall be not less than one and one-half years nor more
than three years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision three or four of section 70.70 of this
article OR SUBDIVISION SIX OR SEVEN OF SECTION 60.12 OF THIS TITLE upon
conviction of a class B felony or class C felony offense;
(e) such period shall be not less than one and one-half years nor more
than three years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of this article
OR SUBDIVISION TWO OF SECTION 60.12 OF THIS TITLE upon a conviction of a
class D or class E violent felony offense;
(f) such period shall be not less than two and one-half years nor more
than five years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of this article
OR SUBDIVISION TWO OF SECTION 60.12 OF THIS TITLE upon a conviction of a
class B or class C violent felony offense.
S 3. The criminal procedure law is amended by adding a new section
440.47 to read as follows:
S 440.47 MOTION FOR RESENTENCE; DOMESTIC VIOLENCE CASES.
1. (A) NOTWITHSTANDING ANY CONTRARY PROVISION OF LAW, ANY PERSON
CONFINED IN AN INSTITUTION OPERATED BY THE DEPARTMENT OF CORRECTION AND
COMMUNITY SUPERVISION SERVING A SENTENCE WITH A MINIMUM OR DETERMINATE
TERM OF EIGHT YEARS OR MORE FOR AN OFFENSE COMMITTED PRIOR TO SUCH
EFFECTIVE DATE AND ELIGIBLE FOR AN ALTERNATIVE SENTENCE PURSUANT TO

S. 3337--A 4

SECTION 60.12 OF THE PENAL LAW MAY, ON OR AFTER THE EFFECTIVE DATE OF
THIS SECTION, SUBMIT TO THE JUDGE OR JUSTICE WHO IMPOSED THE ORIGINAL
SENTENCE UPON SUCH PERSON A REQUEST TO APPLY FOR RESENTENCING IN ACCORD-
ANCE WITH SECTION 60.12 OF THE PENAL LAW. SUCH PERSON MUST INCLUDE IN
HIS OR HER REQUEST DOCUMENTATION PROVING THAT SHE OR HE IS CONFINED IN
AN INSTITUTION OPERATED BY THE DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION SERVING A SENTENCE WITH A MINIMUM OR DETERMINATE TERM OF
EIGHT YEARS OR MORE FOR AN OFFENSE COMMITTED PRIOR TO THE EFFECTIVE DATE
OF THIS SECTION AND THAT SHE OR HE IS SERVING SUCH SENTENCE FOR ANY
OFFENSE ELIGIBLE FOR AN ALTERNATIVE SENTENCE UNDER SECTION 60.12 OF THE
PENAL LAW.
(B) IF, AT THE TIME OF SUCH PERSON'S REQUEST TO APPLY FOR RESENTENCING
PURSUANT TO THIS SECTION, THE ORIGINAL SENTENCING JUDGE OR JUSTICE IS A
JUDGE OR JUSTICE OF A COURT OF COMPETENT JURISDICTION, BUT SUCH COURT IS
NOT THE COURT IN WHICH THE ORIGINAL SENTENCE WAS IMPOSED, THEN THE
REQUEST SHALL BE RANDOMLY ASSIGNED TO ANOTHER JUDGE OR JUSTICE OF THE
COURT IN WHICH THE ORIGINAL SENTENCE WAS IMPOSED. IF THE ORIGINAL
SENTENCING JUDGE IS NO LONGER A JUDGE OR JUSTICE OF A COURT OF COMPETENT
JURISDICTION, THEN THE REQUEST SHALL BE RANDOMLY ASSIGNED TO ANOTHER
JUDGE OR JUSTICE OF THE COURT.
(C) IF THE COURT FINDS THAT SUCH PERSON HAS MET THE REQUIREMENTS TO
APPLY FOR RESENTENCING IN PARAGRAPH A OF SUBDIVISION ONE OF THIS
SECTION, THE COURT SHALL NOTIFY SUCH PERSON THAT HE OR SHE MAY SUBMIT AN
APPLICATION FOR RESENTENCING. UPON SUCH NOTIFICATION, THE PERSON MAY
REQUEST THAT THE COURT ASSIGN HIM OR HER AN ATTORNEY FOR THE PREPARATION
OF AND PROCEEDINGS ON THE APPLICATION FOR RESENTENCING PURSUANT TO THIS
SECTION. THE ATTORNEY SHALL BE ASSIGNED IN ACCORDANCE WITH THE
PROVISIONS OF SUBDIVISION ONE OF SECTION SEVEN HUNDRED SEVENTEEN AND
SUBDIVISION FOUR OF SECTION SEVEN HUNDRED TWENTY-TWO OF THE COUNTY LAW
AND THE RELATED PROVISIONS OF ARTICLE EIGHTEEN-A OF SUCH LAW.
(D) IF THE COURT FINDS THAT SUCH PERSON HAS NOT MET THE REQUIREMENTS
TO APPLY FOR RESENTENCING IN PARAGRAPH A OF SUBDIVISION ONE OF THIS
SECTION, THE COURT SHALL NOTIFY SUCH PERSON AND DISMISS HIS OR HER
REQUEST WITHOUT PREJUDICE.
2. (A) UPON THE COURT'S RECEIPT OF AN APPLICATION FOR RESENTENCING,
THE COURT SHALL PROMPTLY NOTIFY THE APPROPRIATE DISTRICT ATTORNEY AND
PROVIDE SUCH DISTRICT ATTORNEY WITH A COPY OF THE APPLICATION.
(B) IF THE JUDGE OR JUSTICE THAT RECEIVED THE APPLICATION IS NOT THE
ORIGINAL SENTENCING JUDGE OR JUSTICE, THE APPLICATION MAY BE REFERRED TO
THE ORIGINAL SENTENCING JUDGE OR JUSTICE PROVIDED THAT HE OR SHE IS A
JUDGE OR JUSTICE OF A COURT OF COMPETENT JURISDICTION AND THAT THE
APPLICANT AND THE DISTRICT ATTORNEY AGREE THAT THE APPLICATION SHOULD BE
REFERRED.
(C) AN APPLICATION FOR RESENTENCING PURSUANT TO THIS SECTION MUST
INCLUDE AT LEAST TWO PIECES OF EVIDENCE CORROBORATING THE APPLICANT'S
CLAIM THAT HE OR SHE WAS, AT THE TIME OF THE OFFENSE, A VICTIM OF DOMES-
TIC VIOLENCE SUBJECTED TO SUBSTANTIAL PHYSICAL, SEXUAL OR PSYCHOLOGICAL
ABUSE INFLICTED BY A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS THE
APPLICANT AS SUCH TERM IS DEFINED IN SUBDIVISION ONE OF SECTION 530.11
OF THIS CHAPTER.
AT LEAST ONE PIECE OF EVIDENCE MUST BE EITHER A COURT RECORD, PRE-SEN-
TENCE REPORT, SOCIAL SERVICES RECORD, HOSPITAL RECORD, SWORN STATEMENT
FROM A WITNESS TO THE DOMESTIC VIOLENCE, LAW ENFORCEMENT RECORD, DOMES-
TIC INCIDENT REPORT, OR ORDER OF PROTECTION. OTHER EVIDENCE MAY
INCLUDE, BUT SHALL NOT BE LIMITED TO, LOCAL AND STATE DEPARTMENT OF
CORRECTIONS RECORDS, A SHOWING BASED IN PART ON DOCUMENTATION PREPARED

S. 3337--A 5

AT OR NEAR THE TIME OF THE COMMISSION OF THE OFFENSE OR THE PROSECUTION
THEREOF TENDING TO SUPPORT THE PERSON'S CLAIM, OR WHEN THERE IS VERIFI-
CATION OF CONSULTATION WITH A LICENSED MEDICAL OR MENTAL HEALTH CARE
PROVIDER, EMPLOYEE OF A COURT ACTING WITHIN THE SCOPE OF HIS OR HER
EMPLOYMENT, MEMBER OF THE CLERGY, ATTORNEY, SOCIAL WORKER, OR RAPE
CRISIS COUNSELOR AS DEFINED IN SECTION FORTY-FIVE HUNDRED TEN OF THE
CIVIL PRACTICE LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF OF AN
AGENCY THAT ASSISTS VICTIMS OF DOMESTIC VIOLENCE FOR THE PURPOSE OF
ASSISTING SUCH PERSON WITH DOMESTIC VIOLENCE VICTIM COUNSELING OR
SUPPORT.
(D) IF THE COURT FINDS THAT THE APPLICANT HAS NOT COMPLIED WITH THE
PROVISIONS OF PARAGRAPH (C) OF THIS SUBDIVISION, THE COURT SHALL DISMISS
THE APPLICATION WITHOUT PREJUDICE.
(E) IF THE COURT FINDS THAT THE APPLICANT HAS COMPLIED WITH THE
PROVISIONS OF PARAGRAPH (C) OF THIS SUBDIVISION, THE COURT SHALL CONDUCT
A HEARING TO AID IN MAKING ITS DETERMINATION OF WHETHER THE APPLICANT
SHOULD BE RESENTENCED IN ACCORDANCE WITH SECTION 60.12 OF THE PENAL LAW.
AT SUCH HEARING THE COURT SHALL DETERMINE ANY CONTROVERTED ISSUE OF FACT
RELEVANT TO THE ISSUE OF SENTENCING. RELIABLE HEARSAY SHALL BE ADMISSI-
BLE AT SUCH HEARINGS.
THE COURT MAY CONSIDER ANY FACT OR CIRCUMSTANCES RELEVANT TO THE IMPO-
SITION OF A NEW SENTENCE WHICH ARE SUBMITTED BY THE APPLICANT OR THE
DISTRICT ATTORNEY AND MAY, IN ADDITION, CONSIDER THE INSTITUTIONAL
RECORD OF CONFINEMENT OF SUCH PERSON, BUT SHALL NOT ORDER A NEW PRE-SEN-
TENCE INVESTIGATION AND REPORT OR ENTERTAIN ANY MATTER CHALLENGING THE
UNDERLYING BASIS OF THE SUBJECT CONVICTION. THE COURT'S CONSIDERATION OF
THE INSTITUTIONAL RECORD OF CONFINEMENT OF SUCH APPLICANT SHALL INCLUDE,
BUT NOT BE LIMITED TO, SUCH APPLICANT'S PARTICIPATION IN OR WILLINGNESS
TO PARTICIPATE IN PROGRAMMING SUCH AS DOMESTIC VIOLENCE, PARENTING AND
SUBSTANCE ABUSE TREATMENT WHILE INCARCERATED AND SUCH APPLICANT'S DISCI-
PLINARY HISTORY. THE FACT THAT THE APPLICANT MAY HAVE BEEN UNABLE TO
PARTICIPATE IN TREATMENT OR OTHER PROGRAMMING WHILE INCARCERATED DESPITE
SUCH APPLICANT'S WILLINGNESS TO DO SO SHALL NOT BE CONSIDERED A NEGATIVE
FACTOR IN DETERMINING A MOTION PURSUANT TO THIS SECTION.
(F) IF THE COURT DETERMINES THAT THE APPLICANT IS NOT ELIGIBLE FOR
RESENTENCING IN ACCORDANCE WITH SECTION 60.12 OF THE PENAL LAW, THE
COURT SHALL INFORM SUCH APPLICANT OF ITS DECISION AND SHALL ENTER AN
ORDER TO THAT EFFECT. ANY ORDER ISSUED BY A COURT PURSUANT TO THIS
SECTION MUST INCLUDE WRITTEN FINDINGS OF FACT AND THE REASONS FOR SUCH
ORDER.
(G) IF THE COURT DETERMINES THAT THE APPLICANT SHOULD BE RESENTENCED
IN ACCORDANCE WITH SECTION 60.12 OF THE PENAL LAW, THE COURT SHALL NOTI-
FY THE APPLICANT THAT, UNLESS HE OR SHE WITHDRAWS THE APPLICATION OR
APPEALS FROM SUCH ORDER, THE COURT WILL ENTER AN ORDER VACATING THE
SENTENCE ORIGINALLY IMPOSED AND IMPOSING THE NEW SENTENCE TO BE IMPOSED
AS AUTHORIZED BY SECTION 60.12 OF THE PENAL LAW. ANY ORDER ISSUED BY A
COURT PURSUANT TO THIS SECTION MUST INCLUDE WRITTEN FINDINGS OF FACT AND
THE REASONS FOR SUCH ORDER.
3. AN APPEAL MAY BE TAKEN AS OF RIGHT IN ACCORDANCE WITH APPLICABLE
PROVISIONS OF THIS CHAPTER: (A) FROM AN ORDER DENYING RESENTENCING; OR
(B) FROM A NEW SENTENCE IMPOSED UNDER THIS PROVISION AND MAY BE BASED ON
THE GROUNDS THAT (I) THE TERM OF THE NEW SENTENCE IS HARSH OR EXCESSIVE;
OR (II) THAT THE TERM OF THE NEW SENTENCE IS UNAUTHORIZED AS A MATTER OF
LAW. AN APPEAL IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THIS
CHAPTER MAY ALSO BE TAKEN AS OF RIGHT BY THE APPLICANT FROM AN ORDER
SPECIFYING AND INFORMING SUCH APPLICANT OF THE TERM OF THE DETERMINATE

S. 3337--A 6

SENTENCE THE COURT WOULD IMPOSE UPON RESENTENCING ON THE GROUND THAT THE
TERM OF THE PROPOSED SENTENCE IS HARSH OR EXCESSIVE; UPON REMAND TO THE
SENTENCING COURT FOLLOWING SUCH APPEAL THE APPLICANT SHALL BE GIVEN AN
OPPORTUNITY TO WITHDRAW AN APPLICATION FOR RESENTENCING BEFORE ANY
RESENTENCE IS IMPOSED. THE APPLICANT MAY REQUEST THAT THE COURT ASSIGN
HIM OR HER AN ATTORNEY FOR THE PREPARATION OF AND PROCEEDINGS ON ANY
APPEALS REGARDING HIS OR HER APPLICATION FOR RESENTENCING PURSUANT TO
THIS SECTION. THE ATTORNEY SHALL BE ASSIGNED IN ACCORDANCE WITH THE
PROVISIONS OF SUBDIVISION ONE OF SECTION SEVEN HUNDRED SEVENTEEN AND
SUBDIVISION FOUR OF SECTION SEVEN HUNDRED TWENTY-TWO OF THE COUNTY LAW
AND THE RELATED PROVISIONS OF ARTICLE EIGHTEEN-A OF SUCH LAW.
4. IN CALCULATING THE NEW TERM TO BE SERVED BY THE APPLICANT PURSUANT
TO SECTION 60.12 OF THE PENAL LAW, SUCH APPLICANT SHALL BE CREDITED FOR
ANY JAIL TIME CREDITED TOWARDS THE SUBJECT CONVICTION AS WELL AS ANY
PERIOD OF INCARCERATION CREDITED TOWARD THE SENTENCE ORIGINALLY IMPOSED.
S 4. Subdivision 1 of section 450.90 of the criminal procedure law, as
amended by section 10 of part AAA of chapter 56 of the laws of 2009, is
amended to read as follows:
1. Provided that a certificate granting leave to appeal is issued
pursuant to section 460.20, an appeal may, except as provided in subdi-
vision two, be taken to the court of appeals by either the defendant or
the people from any adverse or partially adverse order of an intermedi-
ate appellate court entered upon an appeal taken to such intermediate
appellate court pursuant to section 450.10, 450.15, or 450.20, or from
an order granting or denying a motion to set aside an order of an inter-
mediate appellate court on the ground of ineffective assistance or
wrongful deprivation of appellate counsel, or by either the defendant or
the people from any adverse or partially adverse order of an intermedi-
ate appellate court entered upon an appeal taken to such intermediate
appellate court from an order entered pursuant to section 440.46 OR
SECTION 440.47 of this chapter. An order of an intermediate appellate
court is adverse to the party who was the appellant in such court when
it affirms the judgment, sentence or order appealed from, and is adverse
to the party who was the respondent in such court when it reverses the
judgment, sentence or order appealed from. An appellate court order
which modifies a judgment or order appealed from is partially adverse to
each party.
S 5. Paragraph (a) of subdivision 2 of section 390.50 of the criminal
procedure law, as amended by section 5 of part OO of chapter 56 of the
laws of 2010, is amended to read as follows:
(a) Not less than one court day prior to sentencing, unless such time
requirement is waived by the parties, the pre-sentence report or memo-
randum shall be made available by the court for examination and for
copying by the defendant's attorney, the defendant himself, if he has no
attorney, and the prosecutor. In its discretion, the court may except
from disclosure a part or parts of the report or memoranda which are not
relevant to a proper sentence, or a diagnostic opinion which might seri-
ously disrupt a program of rehabilitation, or sources of information
which have been obtained on a promise of confidentiality, or any other
portion thereof, disclosure of which would not be in the interest of
justice. In all cases where a part or parts of the report or memoranda
are not disclosed, the court shall state for the record that a part or
parts of the report or memoranda have been excepted and the reasons for
its action. The action of the court excepting information from disclo-
sure shall be subject to appellate review. The pre-sentence report shall
be made available by the court for examination and copying in connection

S. 3337--A 7

with any appeal in the case, including an appeal under this subdivision.
Upon written request, the court shall make a copy of the presentence
report, other than a part or parts of the report redacted by the court
pursuant to this paragraph, available to the defendant for use before
the parole board for release consideration or an appeal of a parole
board determination OR AN APPLICATION FOR RESENTENCING PURSUANT TO
SECTION 440.46 OR 440.47 OF THIS CHAPTER. In his or her written request
to the court the defendant shall affirm that he or she anticipates an
appearance before the parole board or intends to file an administrative
appeal of a parole board determination OR MEETS THE ELIGIBILITY CRITERIA
FOR AND INTENDS TO FILE A MOTION FOR RESENTENCING PURSUANT TO 440.46 OF
THIS CHAPTER OR HAS RECEIVED NOTIFICATION FROM THE COURT WHICH RECEIVED
HIS OR HER REQUEST TO APPLY FOR RESENTENCING PURSUANT TO SECTION 440.47
OF THIS CHAPTER CONFIRMING THAT HE OR SHE IS ELIGIBLE TO SUBMIT AN
APPLICATION FOR RESENTENCING PURSUANT TO SECTION 440.47 OF THIS CHAPTER.
The court shall respond to the defendant's written request within twenty
days from receipt of the defendant's written request.
S 6. This act shall take effect on the one hundred twentieth day after
it shall have become a law.

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